The Power of Arrest

In legislation throughout Australia, the right of citizens to arrest and detain people in certain circumstances is enshrined. What we often forget, is that in most cases, these rights are the same rights available to security officers. What is meant by ‘in most cases’ is that, unless a security officer has been afforded some special powers such as the ability to enforce by-laws as a part of his or her role, then he or she has no greater power of arrest than the average citizen. However, unlike the average citizen, it is not uncommon for a security officer to have to affect an arrest. Therefore it is important for all security staff, supervisors and managers, to have a thorough understanding of exactly what boundaries those powers entail.

In Victoria, for example, the Crimes Act provides that any person may use such force as is believed to be necessary to prevent the commission, continuance or completion of a serious offence, or to effect or assist in the lawful arrest of a person committing or suspected of committing any offence.

This type of action is known in general terms as a “citizen’s arrest”. Whilst most readers have probably never been in a position where they have had to effect a citizen’s arrest in their private lives, they might have done so in a professional capacity. If that is the case, then in order to have acted lawfully, they must have acted in accordance with the terms of the Act.

In effecting a citizens arrest, the Act states that the force used by the person must not be disproportionate to the objective. The term “disproportionate” is one about which members of the security industry ought to be familiar. Simply, the force used in arresting an individual must not greatly exceed the resistance.

By way of illustration, it is necessary to examine the actual method used by a person to apprehend a suspect. If a person witnesses a man in a mask pull out a screwdriver, threaten a service station attendant with it whilst demanding cash, and then flee the service station with cash in hand, it is a disproportionate response for that witness to shoot the robber in the back as he is running down the street. It would, however, be an entirely appropriate and proportionate use of force for the witness to tackle the robber to the ground and to restrain him until Police arrived, or to use a weapon of limited damage (such as a broom handle or cricket bat) to knock the robber off his feet in order to detain him until Police are called.

In order for the arrest to be lawful, the citizen may only apply such force as he/she believes on reasonable grounds to be appropriate. What constitutes “reasonable grounds”?

Regular readers of this column would be familiar with the term “reasonable” as it is a word that appears quite often in the law. It is a term that has no concrete application in every set of circumstances. Rather, it obtains its definition and context from the events surrounding its application. By way of illustration, it would not be reasonable for a person to carry a loaded firearm into a public place such as a cinema. However, it is entirely reasonable for a Police officer to do so. What is the difference? Simply, the Police officer is employed by the community to maintain peace, law and order. In order to do so, sometimes it is necessary for Police to draw and discharge a firearm. In the case of a private individual, however, there is no justification for carrying a firearm into such a place. Whilst the act itself is identical (carrying a gun into a cinema) the surrounding circumstances distinguish the actions as being either reasonable (the Policeman) or unreasonable (the individual).

As a citizen is only able to exert such force as he believes on reasonable grounds to be proportionate to the objective (i.e. the arrest), the reasonableness of his actions will be judged by reference to the situation confronting him. For example, if a citizen sees a robber fleeing a service station with a screwdriver in hand after committing an armed robbery, and that person grabs the nearest “weapon” (such as a fence pailing) and strikes the robber on the back of the legs to bring him to ground, that level of force is likely to be considered reasonably proportionate to the objective of arresting the offender. Using the fence pailing to successfully bring the robber to the ground and then using the screwdriver to stab him in the arm would not be considered proportionate force. As it was probably not necessary for the screwdriver to be used by the arrestor at all in effecting the arrest, the use of the screwdriver by the person making the arrest to inflict corporal punishment on the offender would be deemed to be a disproportionate use of force in the circumstances.

Even where a person who is effecting a citizen’s arrest uses only such force as is proportionate to the particular objective, he must be certain that the arrest is lawful in the first place.

The Act states that the arrestor must not only suspect a person of committing an offence but he must actually find the person committing the offence unless two exceptions apply. The first exception is where the arrestor is acting on the lawful instructions of a Police officer. An obvious example of this is where the robber fleeing the service station is being pursued by a Police officer who calls out to a citizen to “stop that man”. The citizen can then take such action and use such force as he believes on reasonable grounds to be necessary to effect the arrest.

The second exception is where a citizen arrests a person who is believed to be escaping from lawful custody. Usually the belief will stem from the arrestor witnessing the escape from detention or from the arms of Police, or where the arrestor believes that this has occurred. In those circumstances a citizen is entitled to take such steps as are reasonably necessary and proportionate to effect the arrest.

If neither of those two exceptions apply, then the Act states that any person may effect an arrest of another person without a warrant where the arrestor reasonably believes that the arrest is necessary to ensure the appearance of the offender before the Court; to preserve public order; to prevent the continuation or repetition of the offence or the commission of a further offence or to preserve the safety or welfare of the public or the offender.

Once the arrestor finds the offender committing the act, he must then be certain that at least one of the other elements is present before effecting the arrest.

The term “found committing” an offence simply means that a person has witnessed a person behaving in such a way that there are reasonable grounds for believing that the person is guilty of an offence.

In respect to Commonwealth offences such as drug importation and social security fraud, legislation states that any person may arrest another person without a warrant if he reasonably believes that the suspect is committing, or has just committed a serious offence and that the case is not one that can be properly dealt with by Police summoning the offender to appear at Court. Importantly, in so far as Commonwealth offences are concerned, the law requires people who have effected a citizen’s arrest to hand the offender over to Police as soon as practicable.

Although the state-based legislation does not contain a requirement that persons who have effected a citizen’s arrest must hand the offender over to Police as soon as practicable, the spirit of the Act expects that this will be done. It seems apparent from the way that the citizen’s arrest powers are drafted that Parliament’s intention is not to create a second tier Police force or to empower vigilante groups. Rather, the legislation appears to recognise the fact that in many cases Police officers require the help of citizens to adequately perform their duties, and that those citizens must not be subjected to criminal charges in the event that they have acted reasonably and in accordance with the legislative requirements.

The power to effect a citizen’s arrest is limited to the situations outlined above. This is considerably different to the power of Police to effect an arrest.

Police are given power by legislation to arrest people. There is no automatic right given to Police to do so – only acts of Parliament provide them with their power. Importantly, if an arrest does not fit within any of the categories in those pieces of legislation then it is unlawful and may be resisted through the use of reasonable force.

In Victoria the Crimes Act states that no person may be arrested without warrant other than in certain circumstances. One of those circumstances is where a person is found committing an offence. The elements of that type of offence have been outlined above.

A further power given to Police to effect an arrest without warrant is where Police believe on reasonable grounds that a person has committed a serious indictable offence. There is no need for the Police to have found the accused person committing the offence. Rather, the Police need only have reasonable grounds of belief that the suspect has committed the offence.

In so far as offences against Commonwealth law are concerned, Police are empowered to arrest a person without warrant where they believe on reasonable grounds that that person has committed or is committing an offence; if charging the person on summons to appear at Court would not stop the suspect from committing further offences; to prevent evidence being lost or destroyed; to make sure that the suspect appears at Court to answer the charge; or to stop the harassment or intimidation of witnesses.

There is a fine line between a lawful arrest and the unlawful deprivation of liberty. It is important to realise that a lawful arrest involves the actual seizure of or physical contact with a person’s body with the intention that the person be detained. Actual capture is not an essential element of an arrest. Technically, if there is no touching of the body then there is no arrest. However, if a citizen does anything that would lead another person to believe that their liberty has been removed, such as asking them to wait in a room, then the person being asked to wait could argue that they were under arrest regardless of whether or not an actual lawful arrest (physical contact) has taken place.

Once an arrest has been effected by Police, they are required to inform the suspect of the nature of the charge. This does not apply where the suspect is aware of the reasons for the arrest beforehand. As far as citizen’s arrests are concerned, there is no requirement for the suspect to be informed of the charge prior to the citizen handing him over the Police, as the citizen will have little to do with the charge other than, perhaps acting as a witness. The situation is the same for offences against Commonwealth law.

There are no special powers given to citizens to perform de facto Police duties other than those pertaining to citizen’s arrests outlined above. If the powers enshrined in legislation in respect to citizen’s arrests are not followed carefully, then the criminal law might very well treat any misuse of those powers as an assault by one member of the public against another.

Justin Lawrence is a partner with Henderson & Ball Solicitors, 17 Cotham Road, Kew, Victoria, and practises in the areas of Commercial Litigation, Criminal, Family and Property Law. Henderson & Ball has Law Institute of Victoria accredited specialists in the areas of Business Law, Property Law and Commercial Litigation. Justin Lawrence and Henderson & Ball can be contacted on 03 9261 8000.